IN RE: DORIAN C. (2024)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In these proceedings pursuant to Family Court Act article 10, respondent mother appeals in appeal No. 3 from an order of fact-finding and disposition that, inter alia, adjudged that she abused one of her children (middle child) who, when he was seven months old, was found to have sustained fractures in both arms, both legs, and several ribs. In appeal Nos. 1 and 2, the mother appeals from orders of fact-finding and disposition that, inter alia, adjudged that she derivatively abused her other two children. Following an evidentiary hearing, Family Court determined that petitioner established by a preponderance of the evidence that the mother caused the middle child's injuries, and thereby abused him and derivatively abused the other two children (see Family Ct Act § 1046 [a] [i], [ii]). The court further found that the mother had not satisfactorily rebutted petitioner's prima facie case of abuse. We affirm in each appeal.

Family Court Act § 1012 (e) (i) provides that a child is abused when the parent or other legally responsible adult “inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ” (emphasis added). Initially, to the extent the mother raises contentions in each appeal concerning the legal sufficiency of the evidence supporting the court's finding of abuse with respect to the middle child, her contentions are unpreserved for our review inasmuch as she failed to move to dismiss the petitions on that basis (see Matter of Lydia C. [Albert C.], 89 A.D.3d 1434, 1435-1436, 933 N.Y.S.2d 147 [4th Dept. 2011]; Matter of Syira W. [Latasha B.], 78 A.D.3d 1552, 1553, 911 N.Y.S.2d 551 [4th Dept. 2010]; see also Matter of Daniel D. [Tara D.], ––– A.D.3d ––––, ––––, ––– N.Y.S.3d ––––, 2024 N.Y. Slip Op. 05665, *1 [4th Dept. 2024]).

In any event, we conclude that the mother's contentions with respect to the legal sufficiency of the evidence lack merit. Here, the evidence established that the middle child's “injuries were ‘clearly inflicted and not accidental’ ” (Matter of Jonah B. [Ferida B.], 165 A.D.3d 787, 789, 85 N.Y.S.3d 505 [2d Dept. 2018]; see Daniel D., ––– A.D.3d at ––––, ––– N.Y.S.3d ––––, 2024 N.Y. Slip Op. 05665, *1), and that his injuries “create[d] a substantial risk” of much more serious injuries (Family Ct Act § 1012 [e] [i] [emphasis added]; see Daniel D., ––– A.D.3d at ––––, ––– N.Y.S.3d ––––, 2024 N.Y. Slip Op. 05665, *1; Matter of Addison M. [Bridgette M.], 173 A.D.3d 1735, 1736-1737, 104 N.Y.S.3d 451 [4th Dept. 2019]). “[U]nder the Family Court Act, a ‘child need not sustain a serious injury for a finding of abuse as long as the evidence demonstrates that the parent sufficiently endangered the child by creating a substantial risk of serious injury’ ” (Jonah B., 165 A.D.3d at 789, 85 N.Y.S.3d 505).

In addition, we conclude that there is legally sufficient evidence establishing that she inflicted or allowed to be inflicted the injuries to the middle child. Indeed, we have repeatedly upheld abuse determinations under similar circumstances (see e.g. Daniel D., ––– A.D.3d at ––––, ––– N.Y.S.3d ––––, 2024 N.Y. Slip Op. 05665, *1; Matter of Avianna M.-G. [Stephen G.], 167 A.D.3d 1523, 1523-1524, 91 N.Y.S.3d 641 [4th Dept. 2018], lv denied 33 N.Y.3d 902, 2019 WL 1941798 [2019]; Matter of Tyree B. [Christina H.], 160 A.D.3d 1389, 1389 75 N.Y.S.3d 391 [4th Dept. 2018]). Here, petitioner established a prima facie case of abuse by submitting “ ‘proof of injuries sustained by [the middle] child ․ of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent,’ ” i.e., fractures in both arms and both legs, and several fractured ribs, all in various stages of healing, which evidence suggests that the mother did not promptly seek medical attention for the child while in her care (Avianna M.-G., 167 A.D.3d at 1523, 91 N.Y.S.3d 641, quoting Family Ct Act § 1046 [a] [ii]). Moreover, we conclude that the mother failed to rebut the presumption that she, as the middle child's parent, was responsible for his injuries (see id. at 1524, 91 N.Y.S.3d 641).

For the same reasons, we reject the mother's contention in each appeal that the finding that she abused the middle child is not supported by a sound and substantial basis in the record (see generally Family Ct Act § 1046 [b] [i]; Matter of Zakiyyah T. [Lamar R.], 221 A.D.3d 1443, 1445, 200 N.Y.S.3d 847 [4th Dept. 2023], lv denied 41 N.Y.3d 901, 2024 WL 629376 [2024]). Petitioner presented expert medical testimony establishing that the constellation of injuries sustained by the middle child—i.e., the multiple fractures to his limbs and ribs—along with the forces and mechanisms necessary to cause those injuries, could only have been caused by nonaccidental trauma. The mother offered no testimony to rebut the expert opinion. Based on our review of the record, we cannot say that the court erred in crediting the testimony of petitioner's expert and in declining to credit the testimony offered by the mother (see generally Zakiyyah T., 221 A.D.3d at 1445, 200 N.Y.S.3d 847).

Finally, we conclude in appeal Nos. 1 and 2 that the court's finding of derivative abuse with respect to the mother's other two children based on evidence that she abused the middle child is supported by a preponderance of the evidence in the record (see Family Ct Act § 1046 [a] [i]; [b] [i]; Matter of Deseante L.R. [Femi R.], 159 A.D.3d 1534, 1536, 72 N.Y.S.3d 713 [4th Dept. 2018]). The abuse of the middle child “is so closely connected with the care [of his siblings] as to indicate that [those children are] equally at risk” (Matter of Marino S., 100 N.Y.2d 361, 374, 763 N.Y.S.2d 796, 795 N.E.2d 21 [2003], cert denied 540 U.S. 1059, 124 S.Ct. 834, 157 L.Ed.2d 714 [2003]; see Matter of Devre S. [Carlee C.], 74 A.D.3d 1848, 1849, 902 N.Y.S.2d 739 [4th Dept. 2010]). The abuse “demonstrates such an impaired level of judgment by the [mother] as to create a substantial risk of harm for any child in her care” (Matter of Aaron McC., 65 A.D.3d 1149, 1150, 886 N.Y.S.2d 408 [2d Dept. 2009]; see Matter of Wyquanza J. [Lisa J.], 93 A.D.3d 1360, 1361, 940 N.Y.S.2d 514 [4th Dept. 2012]).